Ⅱ. Disobedience to Company Directions

1. Disobedience to order regarding personnel movement, such as transfers of workplace, job, or company

As an employer has power over personnel management, he/she may be quite free to redeploy his/her employees so long as it is necessary for business purposes. Nevertheless, he/she shall give a justifiable reason for any act of transferring an employee to another position. In order to determine whether employee redeployment is justifiable or not, considerations shall be made about its business necessity, its implications on the employee’s quality of life, comparability of the previous position and the new one, and compliance with the good-faith principle in the personnel transfer process.

1) Since transferring the employee is included in the employer’s original authority to manage its workforce, such a personnel management order shall be respected as one of the employer’s discretionary rights. This cannot be regarded as illegal except for cases where it violates the Labor Standards Act or amounts to an abuse of this right. Whether such a personnel transfer amounts to an abuse of this right or not shall be estimated after comparing and considering the necessity for the transfer in light of business operations and financial disadvantage to the employee. If an employee’s financial disadvantage due to the personnel transfer is not unreasonable but is an “ordinary difficulty”, this personnel order shall be deemed as part of the justifiable right to manage personnel, and not an abuse of that right.
Regarding justification for personnel transfer, whether the company has sincerely consulted with the employee concerned in advance or not can be one important factor in determining justifiable implementation of the personnel right. However, it is not an abuse of the employer’s personnel management rights if the only supporting reason is that the employer did not go through this procedure.
2) If an employee is absent from work out of defiance to a personnel movement order, such as transfer of workplace, job or company, the company may be justified in taking disciplinary dismissal action as such absence may be deemed as absence without notice based on its employment policy or as disobedience to a reasonable order. Whether the disciplinary dismissal is justifiable or not depends on whether the employer’s order for workplace transfer, job transfer, or company transfer is reasonable or not.
3) In the event a dismissed employee is reinstated to his job based on the court’s judgment of a dismissal as unfair or based on the Labor Relations Commission’s relief order, advice, etc., the company shall carry out such reinstatement. While reinstating the employee, the employer shall consider any personnel arrangement already made during the time of dismissal till reinstatement, business necessity, and change of working environment, etc. so as to assign appropriate work to the reinstated employee. Even if the newly assigned job is somewhat different from the previous job, it shall be deemed to have reinstated him/her adequately because this belongs to the realm of the employer’s fundamental authority and right to management. However, if the employee resorts to actions such as resisting such reinstatement and rejecting the work for a long time, this becomes reasons for dismissal.

2. Disobeying instructions

Refusing to follow directions at work means the employee is neglecting company principles and may cause industrial accidents. This may involve disobedience without legitimate reasons or performing a duty that actually requires permission from a superior.

1) In the event the employer instructs the employee to perform extra work or work overtime exceeding the contractual working hours agreed on between labor and management, and the standard working hours stipulated in the Labor Standards Act, but where such instructions are legitimate and justifiable, it can be a reason for justifiable disciplinary dismissal if the employee refuses.
2) In the event an employee is required, after disciplinary procedures have been taken against him, to submit a written explanation for his/her behavior, but refuses, this can be deemed as disobedience to a justifiable instruction and may become a new reason for disciplinary action. However, such a refusal is a light violation, and an employer choosing the severest action as a response, this may generally be deemed to represent an abuse of the employer’s right to take disciplinary action, unless there are acceptable reasons for doing so.


Ⅲ. Delinquency in Private Life

1. Prohibition against double employment

Most rules of employment prohibit double employment. Employees shall obtain the company’s permission prior to becoming a director or employee for a different company or organization, and shall not be employed at an identical or similar type of company for a certain period of time after resigning from the present company.
An employee holding another job with another company is his private business. So it is unjustifiable to completely and comprehensively prohibit the holding of another job which does not interfere with corporate order or the provision of his labor service. Pursuant to this, where the holding of such other job poses a hindrance to the said employee’s provision of labor service to the company due to holding the job for a long period of time or holding a directorship position in a competitor company, such double employment may be prohibited, in which case disciplinary dismissal is possible.

2. Delinquency outside of business and criminal offenses (Delinquency in private life)

When an employee’s delinquency outside of business affects his/her reliability or relationships with other coworkers inside the company and disrupts labor relations, this can result in disciplinary action. However, such corrupt behavior and immoral conduct pertain to the employee’s private life and, while it may account for social criticism, cannot be the sole cause of disciplinary action in principle. It can only be considered as necessitating disciplinary action when the offense hinders company order.
The reason for an employer to have the right to take disciplinary action is for the purpose of maintaining regulation and order within the legal framework necessary for smooth implementation of a company’s business activities. Therefore, an employee’s delinquency in his private life can only be a justifiable reason for disciplinary dismissal if it is directly related to business activities or if it is likely to damage social evaluation of the company.

3. Traffic accidents

In principle, traffic accidents occurring at a far distance away from the company shall not account for disciplinary action, although an employee who causes an accident at work may face unfavorable treatment. Provided, however, that the accident in this case shall be limited to accidents caused by the employee’s own intentional or negligent behavior.


4. Conviction for a criminal offense

In the collective agreement or rules of employment, where reason for disciplinary dismissal includes “in the event the employee is convicted of a criminal offense,” the purpose for such inclusion is to recognize that such judgment of guilt may affect the company in the following ways: ① the employee’s basic responsibility in providing labor service will not be possible for a significant amount of time so the employer cannot accomplish the purpose of the labor contract; ② there can be no reasonable expectation that the employer and employee will be able to maintain normal labor relations due to the loss of reliability, and the loss of relations with other company employees will hinder the ability to maintain corporate order; and ③ depending on the employee’s position and characteristics of the criminal act, the company may suffer significant damage to its reputation or trustworthiness, or there may be a negative influence on its business transactions.

Ⅳ. Illegal Group or Union Activities

Illegal group activities that violate collective labor relations law can result in disciplinary punishment.

1) Distribution of pamphlets during break time inside company facilities cannot be punished unless it disturbs the employees or violates the company’s order.

2) In cases where union members demand more than the permitted range of working conditions by instigating employees to go on illegal strike, lashing out at company managers, and violating the employer’s instructions to return to work, disciplinary dismissal according to the prescribed process is legal and justifiable.

3) It is not justifiable for employees to use annual leave or monthly leave collectively, and this is an act of work-to-rule, which is a kind of industrial action, if found involved in collective bargaining.

4) After an employer and a labor union conclude collective bargaining on wages, some dissatisfied employees may continue to strike in spite of the employer’s instruction to get back to work. In this case, it is justifiable for the company to open a disciplinary committee and dismiss the employees because of their long-term absence.

5) Distribution of handouts during non-working recess hours is permissible even if the union member did not obtain prior permission, unless the distribution negatively affected other employees’ work, obstructed free use of their recess hours, or corrupted the company’s order concretely. Although the handout distributed by the union member is designed to promote working conditions, if its content created extreme distrust or hatred toward management and endangered public morals by distorting or exaggerating conditions, the employer’s disciplinary dismissal is justifiable and such action is not an unfair labor practice.

6) Some contents stipulated in the handout damaged the character, honor, reputation, etc. of other employees or some parts of the contents stipulated in the document were falsified, exaggerated or distorted, then if the purpose of distributing the handout was not to infringe on other employee’s right or interest, but to maintain and improve working conditions, to promote employees’ welfare and to enhance their economic and social status, and if the content of the handout was true as a whole, the employee’s handout is a justifiable union activity.

7) Although the labor dispute was solved, the company’s operation returned to normal, and the union repeatedly urged the union member to come back to his job, he did not return to his driving job for an extended period because he was still participating in the labor union activities and trying to disrupt the operation of the company. If the company dismissed him for the above reason, this decision is hard to categorize as an unfair labor practice taken to retaliate against his union activities, such as participating in strikes occurring previously.